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Insights Anti-crisis shield in Poland: Questions and answers

Anti-crisis shield in Poland: Questions and answers

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last updated on 14 April 2020 | reading time approx. 6 minutes

  

  

  

 

Anti-crisis shield in the context of Commercial Law

CAN GOVERNING BODIES OF INCORPORATED COMPANIES OPERATE REMOTELY DURING THE COVID-19 PANDEMIC?

The anti-crisis shield1 amends the Code of Commercial Companies to allow holding of meetings of management boards and supervisory boards of limited liability companies and joint-stock companies, as well as adopting resolutions by them, using new technologies, in particular conference calls and video calls. 

Firstly, it is now possible to attend meetings of management board and supervisory board using means of direct remote communication. 

Secondly, the governing bodies can also adopt resolutions in this way (or in writing). When it comes to the supervisory board, resolutions will be valid if all supervisory board members have been informed about the content of the draft resolution and at least a half of the members participate in the voting. At the same time, the previously applicable regulations prohibiting the adoption of resolutions – in writing or by means of direct remote communication – on the appointment of the chairperson and the vice-chairperson of the supervisory board, on the appointment of the management board and on removing these persons from and suspending them in their functions, have been deleted.

Thirdly, management board members and supervisory board members have been given an option to participate in adopting resolutions by the company authorities by casting their votes in writing through another board member. 

Furthermore, the amended act makes it easier to attend meetings of shareholders through means of remote communication. Previously, relevant provisions had to be included in the company’s articles of association. Pursuant to the amended act, it is allowed to attend the meeting of shareholders remotely if the articles of association do not prohibit it. 

What is important, before holding a meeting of shareholders through means of remote communication, by-laws must be established to regulate in detail the rules of participation in the meeting of shareholders held on a remote basis.

It needs to be emphasised that the amended act suggests that it is possible to attend management board and supervisory board meetings on a remote basis. To disallow it, the articles of association or the company statutes will have to be amended as appropriate. 

The above regulation may significantly streamline the functioning of those bodies, in particular if their members reside outside the city of the registered office – in Poland or even abroad. It will also help the aforementioned corporate governing bodies avoid a standstill in their activity, in particular under extraordinary circumstances such as the current covid-19 pandemic and e.g. the related problems with international traffic. 

Anti-crisis shield and deadlines

HAS THE BAN ON TRADING ON SUNDAYS BEEN LIFTED?

The anti-crisis shield allows trading on Sundays under certain conditions. 

Pursuant to the anti-crisis shield legislation, during the state of epidemic emergency or the state of epidemic, announced due to covid-19, as well as 30 days after they are called off, the ban on trading on Sundays does not apply to trade-related tasks consisting in unloading, accepting and displaying basic necessities and entrusting the employee or hired worker with the tasks. 

The regulations do not say, however, what ‘basic necessities’ are. 

The ban on trading on Sundays still applies as before (also when it comes to tasks related to basic necessities) on Sundays on which a public or national holiday falls.

DO THE CURRENT DEADLINES FOR PAYMENT OF FEES FOR PERPETUAL USUFRUCT STILL APPLY?

Under the anti-crisis shield the deadline for payment of fees for perpetual usufruct for 2020 has been amended: pursuant to the regulations, the fee for 2020 should be paid by 30 June 2020, however, the Council of Ministers may extend this deadline.

DOES THE EPIDEMIC AFFECT THE RUN OF TIME LIMITS PROVIDED FOR IN THE CIVIL LAW AND ADMINISTRATIVE LAW?

Pursuant to the anti-crisis legislation, in the state of epidemic emergency or the state of epidemic, announced due to covid-19, some of the time limits stipulated by the administrative law (substantive law) do not run. This means that new time limits do not start to run, and those which already run, are suspended.

This applies, among others, to the following time limits:
  • those which condition the granting of legal protection before court or authority, 
  • to perform acts/transactions by a party which determine that party’s rights and obligations,
  • statute of limitations,
  • those which, if not kept, result in the expiry or change of property rights and claims and due amounts, as well as being in delay,
  • final deadlines which, if not kept, involve negative consequences for the party
  • for performing transactions by entities or organisational units which must be entered into a relevant register – which trigger an obligation to apply for having them entered in that register, as well as time limits for the performance of obligations by those entities resulting from the regulations on their corporate system.
What is important, pursuant to the anti-crisis shield regulations, such acts/transactions are performed effectively because suspension of time limits is a right which may, but does not have to be, exercised.

The aforementioned changes do not apply to civil law regulations because the final version of the anti-crisis shield legislation differs from the earlier drafts in this respect. This means that civil law deadlines generally remain unchanged. 

At this point, we need to draw a line between the provisions of substantive law and procedural law. This is important because pursuant to the anti-crisis shield, court and procedural deadlines in all kinds of statutory proceedings do not run either, including without limitation: 
  • in civil proceedings,
  • in criminal and penal fiscal proceedings, 
  • in administrative proceedings, 
  • in court administrative proceedings,
  • in enforcement proceedings,
  • in proceedings under the Tax Act.
The above division into substantive and procedural law on the one hand, and civil and administrative law on the other is of great importance. That is because without determining the type of a given deadline it is currently impossible to determine whether it has started to run or whether it has been suspended.

In this place it needs to be pointed out that the anti-crisis shield stipulates a category of urgent cases – time limits concerning such matters remain unchanged. Urgent cases are, among others, cases related to criminal law (e.g. for issuing a European arrest warrant, changing temporary detention), as well as selected family law cases (e.g. on taking away a person being under someone’s care or custody). The urgent cases list does not include matters related directly to conducting business activity.

HOW TO COMMUNICATE WITH COURTS DURING THE PANDEMIC?

The final version of the anti-crisis shield does not include the earlier measure to allow communication with courts using means of remote communication. 

Heads of courts come to aid as they issue orders to allow contacting courts through electronic means of communication or its substitute. Therefore, it needs to be noted that first you should correspond with the court using traditional means, unless the relevant court has issued a relevant order. 
  

ARE THE DEADLINES RELATED TO TRADEMARKS ALSO EXTENDED?

Pursuant to the anti-crisis shield, the following deadlines are suspended from 8 March to 30 June 2020:
  • for objecting to the protection of a trademark,
  • for filing a Polish translation of a European patent with the Patent Office, 
  • for filing a Polish translation of a limited or amended European patent.
The above actions are performed effectively despite the suspension of deadlines.

The suspension of the above-mentioned deadlines is important because if they are missed, the interested party will be deprived of legal protection of the trademark, so there will be no option to file an objection at a later date or to validate the European patent in Poland.

HAS THE DEADLINE FOR HAVING BENEFICIAL OWNERS ENTERED INTO THE CENTRAL REGISTER OF BENEFICIAL OWNERS BEEN CHANGED?

Pursuant to the anti-crisis shield, that deadline has been postponed by 3 months. This means that the new deadline is 13 July 2020.

CAN A CONTRACT CONCLUDED UNDER PUBLIC PROCUREMENT PROCEDURE (PUBLIC PROCUREMENT ACT) BE RENEGOTIATED?

Pursuant to the anti-crisis legislation, the parties to the contract concluded in the public procurement procedure should inform each other on an on-going basis whether the pandemic affects or may affect contract performance. 

If the pandemic may affect proper contract performance (including, e.g. missing the deadlines), the parties may amend the contract, e.g. by changing the performance deadline, the method of performance or the scope. However, an important limitation is that each subsequent amendment of the contract cannot increase the contractor’s fee by more than 50%.

What is important, the anti-crisis shield excludes the principal’s obligation to seek contractual penalties to which the principal is entitled in the case of non-performance or improper performance of the contract.

Anti-crisis shield in the context of lease

WHAT CAN A LESSEE OF COMMERCIAL SPACE DO IN THE FACE OF THE BAN ON TRADE IN SHOPPING CENTRES?

The new draft act introduces a solution regarding the extinguishing of mutual obligations of parties. During the period of the ban on trade in commercial facilities with an area of more than 2000 m2 in accordance with the relevant regulations, mutual obligations of the parties to a lease, commercial tenancy or other similar agreement based on which the commercial space is leased or otherwise rented will expire. 

WILL LESSEES BE ABLE TO CONTINUE THEIR ACTIVITIES AFTER THE BAN IS LIFTED?

The person entitled to use the commercial space (lessee) should submit to the owner (lessor) an unconditional and binding offer declaring his or her willingness to extend the period of the agreement under the existing terms and conditions for the period of the ban plus six months. Such an offer should be submitted within three months of the date when the ban is lifted. 

DOES THE DRAFT ACT SUPPORT OTHER LESSEES?

Other provisions of the so-called anti-crisis shield provide also for protection of lessees by extending the contracts currently in force by 30 June 2020 on the basis of lessee’s statement made to the lessor. Furthermore, it will not be allowed to terminate the lease (both residential and other) or amend the rent for the premises until 30 June 2020. However, the protection will not apply to cases specified in detail in the draft act.  

The draft act provides also for measures to forgive amounts payable to the State Treasury or local government units for real property lease, or to extend the deadline for their payment or to be allowed to pay them in instalments. 

WHAT ABOUT LESSEES TO WHOM THE DRAFTED PROVISIONS ON THE TEMPORARY EXPIRY OF OBLIGATIONS WILL NOT APPLY?  

In other cases, you should rely on the provisions of the leases and the general provisions of the Polish Civil Code regulating issues related to agreement performance, parties’ liability or the option of amending the lease. As a rule, force majeure events as such (assuming that the coronavirus pandemic can be treated as such) do not release any party from its obligation to perform an agreement and this includes the payment of the rent by the lessee. But in this specific case, the general rules could be applicable such as the possible release of the lessee from liability for non-performance or improper performance of an obligation due to force majeure (e.g. release from contractual penalties or indemnification from other damages) or the option to amend or terminate the lease based on the so-called rebus sic stantibus clause, also called in Polish law 'the clause of extraordinary change of relations'. 

The solutions described above are just examples of options to be used in a given situation. You are welcome to use our support in reviewing your contracts so that we can customise the support options.

Anti-crisis shield and Renewable Energy Sources 

DO THE MEASURES STIPULATED IN THE ANTI-CRISIS SHIELD STIPULATE AN EXTENDED DEADLINE FOR THE FIRST SALE OF ELECTRICITY UNDER THE AUCTION SYSTEM IN RES PLANTS?

The anti-crisis shield provides for an option to file an application (once) with the President of the Energy Regulatory Office to have the deadline for the first sale of electricity under the auction system extended for no more than 12 months of the original date of performance of that obligation. The application should be filed no later than 30 days prior to the deadline for the first sale of energy under the auction system. Furthermore, we need to add that under the transitional provision the RES producers who won last year’s auction can also apply for the deadline extension.

When considering the producer's application the President of the Energy Regulatory Office considers to the benefit of the producer the fact that the delay:
  1. in the supply of equipment making up a RES plant, or
  2. in the supply of components necessary for the construction of a RES plant, or
  3. in the construction of a RES plant and connections to the power grid, or 
  4. during the acceptance or commissioning of a RES plant, or
  5. when obtaining a licence or entry in the registers specified in the act
  6. is caused by the state of epidemic emergency or the state of epidemic announced by virtue of a regulation of the Minister of Health.
 

DOES THE ANTI-CRISIS SHIELD CHANGE THE PERMISSIBLE AGE OF THE DEVICES WHICH CAN BE USED IN RES PLANTS OPERATING AS PART OF THE AUCTION SUPPORT SYSTEM?

Like with the deadline for the first sale of electricity, when it comes to the maximum permissible age of the devices generating and processing electricity in RES plants, the producers have gained the right to apply for the extension of the maximum period between the devices’ year of production and the first production of electricity. Also in this case the maximum extension period for which the producer may apply is 12 months, and the application must be filed no later than 30 days prior to the first sale of electricity under the auction system.
 

DO THE MEASURES UNDER THE ANTI-CRISIS SHIELD APPLY ALSO TO SUPPORT SYSTEMS OTHER THAN AUCTIONS?

Yes, they also apply to producers using the feed-in tariff (FiT) and feed-in premium (FiP) systems dedicated to RES plants of specific capacity, using water power, biogas and agricultural biogas. The new provisions apply to producers’ declarations on the intention to sell unused electricity. Also in this case the application for the extension of deadline for the first-time production of electricity by the plant, or for the increase of the permissible age of the devices, can be filed.
 

DO THE MEASURES UNDER THE ANTI-CRISIS SHIELD APPLY TO RES ENERGY PRODUCERS WHO BENEFITED FROM THE SUPPORT IN THE PREVIOUS YEARS?

Yes, the anti-crisis shield solutions apply also to RES electricity producers whose bids won the auctions completed before the anti-crisis shield’s effective date. Similarly, the solutions also apply to RES electricity producers who obtained permissions to sell unused electricity before the anti-crisis shield entered into force.


1) The Act of 31/03/2020 Amending the Act on Specific Steps to Prevent and Combat covid-19, Other Contagious Diseases and the Crises They Cause and Certain Other Acts (“the anti-crisis shield”)

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